Tribunal decisions

The decision

UPPER Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/28023/2015

THE IMMIGRATION ACTS

Heard at: Field House
On: 18 January 2017
Decision and Reasons Promulgated
On: 6 February 2017

Before
Deputy Upper Tribunal Judge Mailer

Between
secretary of state for the home department
Appellant
and

Ms Yeshoda Thapa
no anonymity direction made
Respondent

Representation
For the Appellant: Mr D Clarke, Senior Home Office Presenting Officer
For the Respondent: Mr R Sharma, counsel, instructed by Hiren Patel Solicitors

DECISION AND REASONS
1. I shall refer to the appellant as 'the secretary of state' and to the respondent as 'the claimant'.
2. The claimant is a national of Nepal, born on 31 December 1981. Her appeal against the decision of the respondent dated 21 May 2015 refusing her application to vary her leave to remain in the UK and to remove her, was allowed by First-tier Tribunal Judge Grimmett in a decision promulgated on 5 July 2016.
3. The claimant had been granted leave to enter the UK on 24 September 2009 as a Tier 4 (General) Student until 17 April 2011. That leave was extended on two occasions until 19 March 2016.
4. The Judge noted at [3] that on 3 May 2014 she applied for further leave to remain as a Tier 4 (General) Student Migrant, which the claimant claimed was refused on 21 July 2015. The respondent stated that she was granted leave until 19 March 2016 and that she applied for further leave to remain on 9 January 2014 and that her leave was curtailed on 6 May 2014 to end on 5 May 2014.
5. As a result of that curtailment the claimant made an application on 3 May 2014 which was refused on 21 July 2015.
6. In refusing her application the respondent contended that in her application dated 12 April 2013 she submitted a TOEIC certificate from Educational Testing Service (ETS) but ETS subsequently declared the test to be invalid on account of the presence of a proxy tester.
7. Judge Grimmett referred to the recent decision of the Upper Tribunal in SM and Qadir v SSHD (ETS - evidence - burden of proof) [2016] UKUT 00229 (IAC). The President concluded on consideration of the evidence of the respondent's witnesses, Miss Collings and Mr Millington and the evidence of Dr Harrison, that although they had reservations about the strength and quality of the respondent's evidence, it was a comparatively modest threshold and he was satisfied that the respondent had discharged the burden of showing sufficient evidence of deception to discharge the burden that deception had been used in that application.
8. Judge Grimmett noted that she only had the evidence of Ms Collings and Mr Millington before her as the report of Dr Harrison had not been served on the claimant. She declined to accept that statement at the date of the hearing.
9. Judge Grimmett was accordingly not satisfied that the documents produced showed that the respondent had discharged the evidential burden on the basis of two reports, neither of which indicated what this particular claimant is said to have done wrong.
10. Even if she had been satisfied that the respondent had discharged the burden, she was satisfied that the claimant had shown that her English language proficiency was sufficient to enable her to have obtained the scores that she did [10].
11. She noted at [10] that the claimant has been in the UK since 2009. That by itself would not show that she was able to obtain the 5.5 overall score she did in the "IELTS" test. However, she produced an undated certificate showing that she attended a three month intensive English course at the London College of Commerce and that by itself was not helpful as it was undated.
12. She noted that there was however a City and Guilds certificate dated 19 June 2014 showing that the claimant achieved a first class pass in International Spoken ESOL - Communicator. She obtained an integrated graduate diploma in Business Management and Marketing although failing the International Marketing section. She passed the Business Law section and achieved a merit in January 2013. She had previously obtained other qualifications from the same college in 2012 although she had not passed all the exams she had taken in the UK. She has however continued to study throughout the time, and the teaching had been in English [10].
13. Bearing in mind the certificate in English that she had already obtained in the UK, her study in the UK and the length of time she had been here, Judge Grimmett was satisfied at [11], that it is likely that she would have achieved the pass that she did in the IELTS examination which took into account her evidence that the claimant gave before her which was given "in clear English ."
14. She was therefore 'not satisfied' that the claimant had used any deception in obtaining the result in the IELTS examination [12].
15. Her application had also failed as the college lost its Confirmation of Acceptance for Studies (CAS) and it was not listed on the Tier 4 sponsor register when checked in July 2015.
16. The Judge noted that the claimant had not been granted 60 days in which to find an alternative establishment. It appears that that was because the respondent considered that the claimant had used deception. As the Judge was not satisfied that she had used deception, she found that she was entitled under the respondent's policy to a 60 day period in order to enable her to find an alternative course [15].
17. On that basis the appeal was allowed.
18. On 7 December 2016 Upper Tribunal Judge Rimington granted the secretary of state permission to appeal.
19. She found that the Judge made no reference to the spreadsheet from ETS which noted the invalidity of the TOIEC test and which was included in the respondent's bundle before the Tribunal. That the evidence was not considered constituted an arguable error.
20. In addition, Judge Rimmington noted that Judge Grimmett took into account evidence of a first class pass in International Spoken ESOL Communicator. That evidence would appear to post-date the TOIEC test in dispute.
The appeal
21. Mr Clarke submitted that there was an ETS spreadsheet. Accordingly there was sufficient evidence to show that the respondent had discharged the eviential burden relating to deception as set out in Qadir. The City and Guilds certificate was dated 19 June 2014 which post dated the ETS certificate.
22. He submitted that the Judge has given an inadequately reasoned decision. It might have been convenient or opportunistic for the claimant to have obtained the certificate via a proxy.
23. In reply, Mr Sharma referred to the response to the notice of appeal at pages 86-89. He submitted that the grounds seeking permission were 'essentially based on the issue as to whether the Judge considered the ETS spreadsheet and extract which was at E1 of the respondent's bundle'.
24. However, the spreadsheet extract was not accompanied by any witness statement to 'corroborate' how that particular piece of evidence proved that the claimant used deception. The author of the ETS spreadsheet extract was not disclosed. It was not disclosed whether it was the evidence of the secretary of state or evidence of the ETS. Accordingly in the absence of any explanatory witness statement with regard to the alleged spreadsheet, it was left to the Tribunal to infer its contents.
25. Moreover, even if the Judge had been satisfied that the secretary of state had discharged the burden of proof, the Judge nevertheless concluded that the claimant did not use deception based on the explanation that was provided by her.
26. Further, even if it were to be accepted that the Judge did not consider the ETS spreadsheet while deciding the initial burden of proof on the secretary of state, it would not have changed the overall outcome of the appeal.
27. Mr Sharma also pointed out that the hearing was initially listed for 11 April 2016, which was then adjourned to 27 June 2016. There had been ample opportunity to provide evidence, which the secretary of state still failed to produce. She 'unsuccessfully attempted to adduce last minute evidence'.
28. Mr Sharma referred to the claimant's witness statement before the First-tier Tribunal. She gave evidence at the hearing. She set out a positive case that she sat the TOEIC English language test herself on 19 February 2013 and described that she travelled to Canada Water area herself.
29. She had done quite a few English language tests in the past. She was confident to face that test. She set out various details as to what transpired on the day including passing through a reception and a third floor where they checked her ID and her appointment booking. They took a photograph of her and registered her details in the system. She was held in a waiting area and was told to go into a test hall a short while later. She was assigned to a desk in the middle row. She completed the parts of her test there. She was surprised to hear that the Home Office stated that her test had been fraudulently obtained.
30. She referred to the fact that she had passed her English language IELTS test in 2008. She has studied at various institutions in the UK after her arrival in 2009. All the courses were taught in English. She has never had any problem with studying in English in the UK. She had thus spent seven years here and has studied in several colleges and institutes. She has never had any reason to have a proxy taker for any exam.
31. He submitted that the reference by the Judge at [11] and [12] to the 'IELTS examination' was a typographical error. The Judge stated that she was satisfied that it is likely that she would have achieved the pass that she did in the TOEIC exam. She took into account her evidence before the Tribunal which was given in clear English. She was therefore not satisfied that the claimant had used any deception in obtaining the result in the TOEIC examination.
Assessment
32. Judge Grimmett was aware of the contention by the secretary of state, namely that in her application dated 12 April 2013 the claimant had submitted a TOEIC certificate from ETS which subsequently declared the test to be invalid on account of the alleged presence of a proxy tester.
33. It is unfortunate that the Judge referred to this as an IELTS test. However, it is plain from the context in which reference to the IELTS is made, that she in fact intended to refer to the TOEIC examination.
34. The claimant gave evidence before the Tribunal, stating that she sat the test herself. The Judge directed herself in accordance with the judgment in SM and Qadir, supra.
35. Notwithstanding the fact that the case was adjourned for a significant period, the secretary of state had still not served the report of Dr Harrison in accordance with the Tribunal's directions. That evidence was accordingly not admitted on the day of hearing. There had been no explanation, reasonable or otherwise, given for the failure to comply with directions. On the basis of the two reports provided the secretary of state had not discharged the burden of proof [8].
36. Even assuming that the burden has been met the Judge took into account evidence that was put forward by the claimant herself, and concluded that her English language proficiency was sufficient to enable her to have obtained the scores she did.
37. That evidence related not only to the actual taking of that test and the circumstances on the date of the examination but also took into account the various certificates in English that she had already obtained and the courses that she had studied. Those courses were in English.
38. These findings were based on the evidence before her. Whilst, as submitted by Mr Clarke, there may have been reasons why a person in the claimant's position would have found it convenient to use a proxy taker, the Judge was satisfied on the evidence as a whole that the claimant had shown that she obtained the necessary English language qualification following the examination which she undertook.

Notice of Decision
The decision of the First-tier Tribunal did not involve the making of any material error on a point of law. It shall accordingly stand.
No anonymity direction is made.

Signed Date 3 February 2017
Deputy Upper Tribunal Judge C R Mailer